When including universal access as a legal principle, for instance in anti-discrimination legislation, we face a challenge in producing an agreed definition that may be used by courts to decide whether a violation of people’s rights to accessibility has taken place. In the following I will discuss the principle of universal design, refer to the discussions in Norway on how to use this principle in legal terms, and finally illustrate how universal design is introduced in some parts of EU legislation.
What is universal design?
Universal design and Design-for-All is a fairly new notion in the discussion on how to make society accessible for all and remove barriers against the societal participation of disabled people. Design-for-All, or universal design, means design or adaptation of the main solutions for access to an enterprise etc. so that it can be used by as many people as possible. The purpose of using the principle of universal design in the production of goods and services is to make products, means of communication, buildings and surroundings accessible for as many people as possible. Thus there is an aspect of equality connected to this principle, with regards to the purpose of everyone having the same possibilities to participate in different parts of society. For example in employment and education, culture and leisure activities, without being dependent on special solutions and measures, or in the worst case be excluded from such participation.
There are seven main principles for universal design, as developed by American researchers in 1997[1]:
* Equal possibilities for use.
The design should be usable and accessible for persons with different skill levels.
* Flexible in use.
The design should serve a broad range of individual preferences and skills.
* Simple and intuitive in use.
The design should be easy to understand, notwithstanding the experience level of users, their knowledge, language skills or level of concentration.
* Understandable information.
The design should communicate necessary information to the user in an effective way, notwithstanding circumstances related to the environment or the sensory skills of the user.
* Tolerance for mistakes.
The design should reduce the possible dangers and accidents with unfortunate consequences, or reduce the risk for accidental mistakes.
* Minimal physical effort.
The design should be usable with a minimum of effort.
* Size and space for access and use.
Appropriate size and space should facilitate access, range, service and use, notwithstanding the user’s physical size, position or mobility.
It is important to remember that a population consists of individuals with different requirements and needs. It is an objective that as may as possible must be able to be self-sufficient, in their own homes as well as in society at large. This means that public transport, buildings and surroundings and information- and communication technology must be designed in such a way that everyone can use them according to their own abilities and requirements. Some will need assistive technology like wheelchairs, special telephones etc. Some will need individual adaptation and/or personal assistants in order to cope with everyday life. It should not be necessary to have assistance because of inadequate planning that does not relate to the different needs of a population – however, there will always be some people who need individual adaptations even if mainstream planning for society at large is good.
In Europe universal design is used as a political principle for initiatives in order to ensure equality and accessibility for all. Equality means that you are able to participate in all fields of society without being dependent on special solutions and specific measures. Thus, universal design requires holistic thinking in societal planning and the social framework like buildings, transport etc. Planning is therefore an essential element to achieve universal design.
There may be a difference between the principle of universal design – of buildings, surroundings, work places and means of transport that everyone may use – and the notion of accessibility, which may be limited to special measures ensuring access for certain groups, like wheelchair users etc. Measures to ensure universal design really means that everyone should be able to use what is designed, notwithstanding their mobility. Measures to ensure accessibility are specifically directed towards individual groups or persons, and often made to modify existing structures etc.
Work of disabled people for universal design
The European Disability Forum have for a long time demanded that design-for-all be integrated as a requirement when planning buildings, transport systems, infrastructure, and also in standardisation. This has been expressed through numerous position papers regarding EU policy and legislation in fields of transport, information society, the built environment and public procurements. In many of these fields EDF has been successful in raising the European decision-makers’ attention to the needs for universal access in order to ensure the full participation of persons with disabilities.
As I will detail next, specific legislation in the fields of public procurement and in transport have shown a very positive development regarding mainstreaming and awareness raising on the part of the European Union. I will also use examples from my own country to illustrate how such legislation can successfully be implemented on a national level.
Universal design in legislation and public policy
In order to ensure the use of universal design, several instruments are feasible for public authorities and other bodies involved in making society accessible for all. In Norway universal design is to an increasing degree part of requirements in public action plans, for instance in the field of transport, public buildings, libraries, education etc. A general antidiscrimination legislation has been drafted in 2005, where the notion of universal design was for the first time discussed as a legal term, as one of the articles in the draft law requires universal design in all public building construction.
The background for the work on an antidiscrimination act started in November 2002, when the Government appointed a legislative committee to investigate the need for legislative and judicial measures to strengthen the legal status and protection against discrimination of persons with disabilities. It is interesting to note that initially the committee thoroughly discussed the terms of “disability” and “disabled people” as a point of departure for the proposal for legislation. The committee stated that:
“Although the Committee subscribes to a relational or social understanding of disability, the Committee finds it difficult to apply such a definition in the legislation. This is primarily owing to the extent to which the concept incorporates consequences while the legislation is precisely designed to combat these consequences. The Committee has therefore adopted disability as the key term. Disability denotes qualities associated with the individual, cf. the more precise explanation of the protected ground in the introduction to the draft statute. At the same time, the Committee does not wish to reserve protection against discrimination for persons who have a disability, but rather to provide protection against discrimination on the basis of disability. Rather than defining a protected group of persons, the Committee wished to define a protected ground.” [2]
In preparing the accommodation obligations, the Committee considered whether “universal design” could be used as a legal standard when specifying detailed requirements regarding accessibility to buildings, constructions, developed outdoor areas, ICT, means of transport, etc. The Committee has commissioned a legal opinion that elucidates various legal issues regarding the use of such a standard in legal texts, and this showed that such an approach is possible. Universal design will ensure accessibility for persons with disabilities and, in addition, benefit many persons regardless of an assessment of their ability. Improved accessibility and universal design will, for example, have importance for pregnant women, parents of young children with and without perambulators, persons with temporary disabilities and persons who, owing to advanced age, have reduced mobility, weak eyesight, hearing or sense of direction.
In section 9 in the draft Act, public undertakings and private undertakings that offer goods and services to the general public are required to make active and targeted efforts regarding general accommodation (universal design). The Committee commented that:
“By universal design is meant “design or accommodation of the main solution as regards the physical conditions so that the normal function of the undertaking can be used by as many people as possible”. Public undertakings and private undertakings that offer goods and services to the general public are furthermore obliged to ensure that universal design is applied to the normal functions of the undertaking provided this does not entail an undue burden for the undertaking.”
When assessing whether the design or accommodation entails an undue burden, particular importance shall be attached to the necessary costs associated with the accommodation, the undertaking’s resources, and the consequences of the accommodation in dismantling disabling barriers, whether the normal function of the undertaking has a public character, safety considerations and the consideration of cultural heritage. Breach of the obligation to ensure the application of universal design pursuant to the third paragraph is regarded as discrimination, if a person with a disability is adversely affected if the accommodation is inadequate. It is not regarded as discrimination if the undertaking meets specific provisions laid down in statutes or regulations concerning the obligation to implement universal design.
In the end, the proposed antidiscrimination Act’s Article 9 on universal design was stated as follows:
“Section 9 Obligation regarding general accommodation (universal design)
Public undertakings shall make active and targeted efforts to promote universal design within the undertaking. The same applies to private undertakings that offer goods and services to the general public.
By universal design is meant design or accommodation of the main solution as regards the physical conditions so that the normal function of the undertaking can be used by as many people as possible.
Public undertakings and private undertakings that offer goods and ser vices to the general public are obliged to ensure that universal design is applied to the normal functions of the undertaking provided this does not entail an undue burden for the undertaking. When assessing whether the design or accommodation entails an undue burden, particular importance shall be attached to the necessary costs associated with the accommodation, the undertaking’s resources, and the consequences of the accommodation in dismantling disabling barriers, whether the normal function of the undertaking has a public character, safety considerations and the consideration of cultural heritage.
Breach of the obligation to ensure the application of universal design pursuant to the third paragraph is regarded as discrimination if a person with a disability is adversely affected by the inadequate accommodation.
It is not regarded as discrimination pursuant to the fourth paragraph if the undertaking meets specific provisions laid down in statutes or regulations concerning the obligation to implement universal design.”
The Discrimination and Accessibility Act was implemented January1st 2009.
Another important area for legislation is on public procurement - an important tool for achieving the implementation of the principle of universal design in all goods and services used by the public. EU has made an important step in opening the revised Directive for public procurement for making requirements for universal design in technical specifications to tenders.[3] The preamble 46 in this Directive states that procurers may use criteria which are aimed at reaching social objectives, to meet the needs of particularly vulnerable population groups. The Norwegian Public Procurement Act was implemented on january 1st 2007, following the EU Directive but also making stricter demands for including universal design as a clause in planning of public procurements.
Today, the market for public procurement constitutes some € 30 billion on an annual level in Norway alone, and thus the introduction of a clause on universal access in tenders as well as planning for public procurement would be an important step to achieve objectives of access for all. Also, clauses on universal design will not only be of benefit for all end-users but also have an awareness-raising effect on public procurers, industry and research bodies, all involved in the large European market for public procurement. Universal design in public procurement is also an economic issue – for the procurers it is important to estimate what is the most cost-effective use of the principle of universal design when planning the tender. This can be done through evaluating how lifecycle-related considerations can legitimise larger investments in goods and services than would be normal in the procurement process. Through the use of universal design in the planning face of a public tender, considerable amounts of money can be saved by making it unnecessary to rebuild or specially adapt products procured in order for broader user groups to be able to benefit from them. A public procurement process consists of several phases, during all of which considerations of the principle of universal design are important:
Planning
Making overall objectives as a basis for concrete operational objectives during the planning process. The objectives should legitimise that specific concerns are made, for instance that surroundings and services should be accessible for all and that the procurements are therefore to follow the principle of universal design.
Knowledge of the heterogeneity of the population, how they are affected by the actual services or goods to be procured and whether alternative products will have a discriminating effect. For instance, it is estimated that some 20 % of a normal population will have problems using public transport because of lack of accessible vehicles and infrastructure.
A method to ensure that the needs of different groups of the population are taken care of and for the evaluation of possible consequences of the procurement.
The plan and basis for final decision-making should illustrate how the principle of universal design has been integrated in the procurement process, including formulated objectives, how the concrete requirements for the design of the goods and services to be procured have been made etc.
User participation from all affected groups will yield better understanding of the different needs in relation to the goods and services to be procured. Antidiscrimination and life cycle consideration may also be relevant.
Specifications. It must be clearly specified what is meant by universal design in the individual areas covered by the tender.
Market surveys must make clear that what is wanted, are goods and services following the principles of universal design and how this is to be understood regarding the specific tender.
Tenders. It is vital that technical specifications clearly state what is meant by universal design, and one may also refer to legislation and guidelines in the areas concerned, for instance WAI guidelines for ICT-related goods and services, the EU buses and coaches Directive for public transport etc.
Evaluation of proposals. How did the producers plan to fulfil the principle of universal design in their proposal? In what way will their specific product affect the user groups?
Negotiations – if relevant, it should here be further clarified what is required in the field of universal design, before signing contract.
Contract agreements – expected criteria for universal design must be clearly specified, in order to avoid later disagreements.
Following up – monitoring the actual implementation of universal design in the goods and services procured.
The new legislation on public procurement in Norway, which is the national implementation of the EU Directive on public procurement, also addresses the notion of universal design as a legal requirement for public bodies in their planning of public procurement. This has also required greater attention to the principle of universal design with industry and service providers as well as with public authorities, and a guideline for the use of these groups, as well as the NGOs of disabled people, has already been produced.
Legislation on transport is a particularly important area for ensuring universal Design. Access to transportation is a requirement for all people to be able to participate in society, be it in education, work or leisure time. It should be an integrated part of public planning to investigate, for example, how large a part of the population it is feasible will use public transport, and how this number will increase with the use of low-floor buses, accessible ticket machines etc. But consideration of the infrastructure surrounding the transport means is equally important. Accessible buses and trams are of limited value if the bus stops, terminals and stations are inaccessible for passengers with reduced mobility.
EU has implemented or drafted a series of Directives that will affect everyday life to a considerable degree. I have already mentioned the buses and coaches Directive which ensures that buses of Class 1 in cities are accessible for different groups of disabled people. Accessibility for disabled people to public transport has been emphasised by the European Commission in several important policy documents, like the White Book European Transport Policy for 2010: time to decide, [4] where the importance of “increased use of clean vehicles and types of public transport that are accessible for all users, including persons with reduced mobility (in particular disabled and elderly people)” was focused upon. In the Communication of strengthening of passengers’ rights from 16th February 2005 the Commission mentioned that a mainstream policy for protecting the rights of passengers must include specific measures for persons with reduced mobility[5]. They refer to the fact that 10 % of the European population or about 45 million people have disabilities, and that an efficient access to transport is decisive for active participation in the economic and social life – lack of accessible transport in contrast may result in serious barriers and exclusion.
Legislation on transport has an important antidiscrimination aspect. This can in particular be seen in the proposed Directive on rights for air passengers with reduced mobility, which will prohibit discrimination of air passengers on the basis of their disabilities. But also important rules ensuring accessibility for all is included in transport legislation, for instance Directive on buses and coaches[6], which ensured access for wheelchair users to class 1 buses (city buses) as well as lighting and contrast colour requirements in the technical annex. The same is the case for the Directive on maritime transport which states clear requirements to accessibility on passenger ships for passengers with reduced mobility, like ramps, lifts and easy access to the various decks, but also accessibility to information through clearly visible signs, pictograms and other types of visible information.
There is less EU legislation on access to buildings, but the same principles are relevant in this field to ensure universal access. Planning is vital, both of the built environment and the surroundings. The road leading to the buildings, accessible parking spaces for persons with reduced mobility, accessible (main) entrances to the buildings, and not least important, access to the interior of the buildings must all be included in planning. There are plenty of guidelines to assist planners and politicians in this field, one example is the European Concept for Accessibility Technical Assistance Manual[7], which has been updated and contains a vast amount of important information. The active use of universal design requirements is very important in public procurement in the field of built environment and surroundings, and we hope for as adequate European legislation in this field as we have in the field of transport. I can mention that the European Disability Forum welcomed the recommendations presented in that report and will campaign for the following up and implementation of the EU expert proposals; including the call to amend existing EU legislation to insert accessibility for all criteria in the field of for instance construction products and health and safety and include the issue of accessibility in public procurement tenders.
Conclusion
We have seen that the principle of universal design is increasingly used as a basic tool for governments and the European Union to ensure accessibility for all, in particular as a supplement to antidiscrimination legislation to protect the rights of persons with disabilities. Universal design is a cheaper way of ensuring accessibility if it is introduced already in the planning process, in stead of costly reconstructing measures or the provision of specific items to assist disabled people in using facilities that otherwise could have been used by anybody.
A better understanding of the principle is needed for wider groups like politicians, bureaucrats, experts, industry, standardisation experts and the NGOs of disabled people themselves.
Important guidelines are produced both on European and national level, but the challenge is to disseminate information on a broad level combined with awareness raising measures. It is evident that these challenges can most efficiently be met on a European level through co-operation between all bodies concerned, exchange of good practise, user participation and conferences.